Statutory declarations are perhaps one of the most common functions performed by JPs in the ACT, and yet they are full of pitfalls for the unwary. First introduced into Australia in 1845 in New South Wales, a statutory declaration is a written statement in which the person making it (the declarant) declares that the statement is true in every particular.
Under the Commonwealth Statutory Declarations Act 1959 (as amended), “a person may, if he or she so desires, make a statutory declaration in relation to any matter”.
Further, a statutory declaration may be used:
- for the purposes of a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law;
- in connexion with any matter arising under a law of the Commonwealth or of a Territory, unless the contrary intention appears in that law; or
- in connexion with the administration of any Department of State of the Commonwealth.”
However, like almost all aspects of life in a country with a federated system of government, statutory declarations vary between jurisdictions. All states and the Northern Territory have their own legislation that govern when and how statutory declarations may be made.
The wording and exact requirements for statutory declarations vary from jurisdiction to jurisdiction and at present, there is not a common form.
The Commonwealth Act applies only to matters involving the Commonwealth (either directly, or through some aspect of Commonwealth legislation), and the Australian Capital Territory (the Northern Territory is specifically excluded from the definition of “Territory” in the Commonwealth act.
“A statutory declaration made under this Act must:
- be in the prescribed form; and
- be made before a prescribed person.”
It is critical to note that in order to be valid, the statutory declaration MUST be in the prescribed form and MUST be made before a prescribed person (there is a long list of prescribed persons, but the most commonly used one are Justices of the Peace and public servants).
It is important to note that many organisations prepare their own Statutory Declarations forms for the use of clients (such as financial institutions and the ACT Roads and Traffic Authority in relation to speeding fines). Provided that these forms comply with the form specified in the Act, then they can become a valid statutory declaration.
JPs who are presented with what purports to be a statutory declaration, but is not in the prescribed form, must decline to act until the declarant has completed the declaration in the form prescribed by the Act.
The penalties for making a false declaration are quite severe, and a person may be imprisoned for four years for making a false statement in a statutory declaration.
JPs must decline to act if they are aware that there is a false statement in a statutory declaration presented to them.
Should a JP become aware of a false statement in a statutory declaration, they should contact the Australian Federal Police and follow their directions. It is not the role of the JP to pursue the matter any further.
Yes, JPs must decline to act if the declarant is not present.
Yes. The instructions from the Department of Justice and Community safety are very clear“statutory declarations and affidavits must be signed in the presence of the person witnessing them.
If the declarant has already signed the form before presenting it to the JP, the declarant should be asked to complete a new declaration. If that is impractical, the declarant should be asked to sign the form again in front of the JP. The original signature should be circled and crossed out and the JP and the declarant should place their initials next to the circle.
If the minor can understand the nature and meaning of the declaration, the minor should be allowed to make the declaration. It is important to note that a minor’s parent or guardian may make the declaration on behalf of the minor.
Unlike affidavits, Statutory Declarations may be written in any language and the choice of the language is a matter for the declarant.
If the declaration is written in a language with which the Justice of the Peace is unfamiliar, the following text must be added under your signature at the end of the declaration:
Witnessed signature only. Document in a language not able to be understood by JP.
If the declarant is blind, illiterate or otherwise unable to read the declaration, you should ensure that:
- the declaration is read to the declarant in your presence;
- the declarant appeared to understand it;
- the declarant signed or made his or her mark in your presence.
You must then add the following text under your signature at the end of the declaration:
Declared by the declarant on the (date) at (place) before me, the declarant being (blind OR illiterate OR unable to read) and the contents of this declaration having first been read over to him (or her) and he (or she) appearing to understand the nature and the effect thereof.
JPs are authorised under the Commonwealth Statutory Declarations Act Regulations to administer a declaration under the Act anywhere within Australia and in certain Territories not being part of the Commonwealth of Australia:
- Australian Antarctic Territory;
- Christmas Island;
- Cocos (Keeling) Islands;
- Coral Sea Islands Territory;
- Norfolk Island;
- The Territory of Ashmore and Cartier Islands; and
- The Territory of Heard Island and McDonald Islands.
It is interesting to note that a number of these territories are normally uninhabited, and yet it is possible to make a Statutory Declaration under the Commonwealth Act.
You may administer a declaration in the ACT that is made under the relevant legislation of the Northern Territory and all Australian States, with the exception of South Australia.
A Statutory Declaration administered in the ACT under an Act other than the Commonwealth Act should be administered according to the requirements of the other jurisdiction’s Act. In most cases all this will mean is that the form of the Statutory Declaration is slightly different (links to the various forms for Statutory Declarations used across Australia are available from the Australian Council of Justices' Associations website).
Once you have administered a declaration in the ACT under an Act from another jurisdiction, the following text must be added under your signature at the end of the declaration:
Justice of the Peace in and for the ACT.